Judicial misbehaviour or just blunt speaking?

With CDU Introduction to Public Law students due to study the topic judicial independence next week, it is an opportune time to examine a current situation involving allegations of judicial misconduct or incapacity on the part of NSW magistrate Pat O’Shane:

Ms O’Shane, who turns 72 in June next year, has been the subject of at least six previous complaints to the Judicial Commission of NSW, including one that was dismissed by its conduct division, which handles the more serious cases.

On Friday, Ms O’Shane – a magistrate with 25 years experience – had dismissed the case, saying a paramedic, allegedly assaulted by a patient, had initiated the confrontation. Police will be asking the Director of Public Prosecutions to consider appealing the case on the basis of judicial error.

The Premier, Barry O’Farrell, announced yesterday he had asked for Ms O’Shane to be referred to the commission because he was concerned she had refused to allow the ambulance driver to give evidence.

Magistrate O’Shane has also had a number of other brushes with the legal system relating to her competence and attitudes as a magistrate.

She initially won a defamation action against the Fairfax newspaper group and its conservative columnist Janet Albrechtsen but later in 2005 had her damages massively reduced after the NSW Court of Appeal found that several of the allegedly defamatory statements about O’Shane were covered by the defence of fair comment:

66 At the heart of imputation (c) was that the respondent allowed her subjective attitudes to affect her judgment. In my view, an opinion to that effect might reasonably have been based on the dismissals of at least the charges other than the Kanaan charges, in the light of the respondent’s anger expressed by her statements as to police harassment and inappropriate action and advertising suitability and her approach of human values; taking them together, the hypothetical opinion-holder might reasonably have concluded that there was anger and bitterness influencing the respondent’s decision-making. …

68 Imputation (f), that the respondent, as a magistrate, is incompetent, was an opinion which might reasonably have been held, because that description might reasonably have been given to a judicial officer who allowed the attitudes earlier identified to affect the judicial officer’s decision-making. Similarly as to imputation (g) and (h); the hypothetical opinion-holder might reasonably have come to the view that the respondent departed from the objectivity and impartiality necessary for a judicial officer.

69 In my opinion, therefore, the defence of comment was made out as to imputations (c) and (f), (g) and (h).

1999: O’Shane dismisses attempted murder charges against notorious drug dealer, Michael Kanaan. He has been chased by police into White City Tennis Centre in Rushcutters Bay, where several shots have been fired and a policeman wounded. O’Shane describes police as “stupid, reckless and foolhardy” to give chase, and suggests they were harassing him and his three companions.

Kanaan (who is now serving two life sentences) had executed a rival drug gang leader, Danny Karam, the week before. Six months earlier, he had killed two strangers in a drive-by shooting.

NSW DPP, Nicholas Cowdery, ignores O’Shane’s decision and brings charges ex-officio. Kanaan is eventually found guilty of malicious wounding and jailed for 12 years.

2000: The Police Association makes a complaint about O’Shane to the Judicial Commission in relation to Kanaan comments.

2001: O’Shane is investigated by Judicial Commission after she claims some women fabricate rape charges. Her comments are made while rape charges are pending against Indigenous leader Geoff Clark.

Sept 2004: O’Shane discovers her husband of 19 years is having an affair with their next-door neighbour. She allegedly waves a knife, threatens him, and throws his clothes on the neighbour’s doorstep at 1.30 am. The woman takes out an AVO against her. O’Shane’s husband also seeks an AVO then withdraws it. Police bring assault charges, then drop them. O’Shane steps down from the bench while she is treated for depression.

Oct 2005: O’Shane dismisses charges of offensive behaviour against a drunken pedestrian who tells police, “youse are fucked”. She claims there are no longer “community standards” in relation to such behaviour. She awards the man $2600 in costs, on the basis he should never have been arrested and charged, because this sort of language is “to be expected on George St at that time of night”.

2006: O’Shane is investigated by Judicial Commission after she locks up a defendant in a civil case for alleged contempt of court.

2007: There are calls for NSW Parliament to sack O’Shane after she dismisses charges against a 51-year old man for spitting at transit police at Redfern Station. O’Shane accuses the officers of assault and fabricating evidence, despite CCTV footage showing the man making threats.

March 2010: O’Shane dismisses charges against a drunken man for assaulting police, and says the police were to blame. She also accuses them of “fabricating” and “colouring” their evidence. Constables Scott Williams and Daniel Ayling have given evidence in court that the man called them “fucking pigs”.

January 2012: O’Shane dismisses charges of assault against an African Australian who has allegedly punched a paramedic. She questions whether the paramedic is racist after hearing evidence that the parademic called the refugee a “filthy pig” for spitting on the ambulance floor. She refuses to hear corroborating evidence from the ambulance. NSW Premier Barry O’Farrell asks the Judicial Commission to investigate, saying O’Shane’s behaviour “fits a pattern”.

Between 1999 and this year, the NSW Supreme Court has been asked to review decisions of O’Shane in at least 56 cases, including 16 criminal cases. In at least three of these cases, she was criticised for refusing to allow a prosecutor to call further witnesses and, in effect, placing herself in the role of counsel for the defendant rather than an impartial judicial umpire.

In the latest decision, Justice Peter Garling noted the Supreme Court had given very specific directions on how O’Shane should apply the law but again her conduct ”fell short of the required standard of a trial judge acting properly and … involved a manifest error of law”.

The Supreme Court has found O’Shane got the law wrong in 14 out of those 16 criminal cases. In the two cases in which her decisions were upheld, one was a private prosecution that did not involve the police and in the other the defendant was herself a police officer so the police were, in effect, on both sides.

In the other 14 cases, the police or Director of Public Prosecutions had brought a case against a private citizen and then appealed when O’Shane dismissed the case. In one case she dismissed a charge even though the accused had entered a plea of guilty.

In different cases, Supreme Court judges have said:

O’Shane ”did not comprehend the real basis of the prosecution case or the significance of the evidence before her”;

That she dismissed a case on the basis ”the prosecution had not proved a fact that it did not have to prove” and that her decision was based on reasons that were ”either undisclosed or incomprehensible”;

That her conduct ”bore little resemblance to what was required by law”, she ”failed to comply with statutory procedures … and denied the prosecutor procedural fairness” and failed ”to give reasons as required by law”.

That she dismissed a charge ”without proper regard to applicable law and practice”;

That ”with all proper respect to the learned magistrate … it seems to me that there was a clear failure of procedural fairness in the way in which her worship dealt with the prosecution and with the prosecutor”; and

That she ”used intemperate language in a way that inappropriately denigrates the evidence of the police”.

Where the Supreme Court finds there has been a legal error, the matter is often returned to the magistrate to reconsider the case and to apply the law as explained in the Supreme Court’s decision. In eight of the 14 appeals upheld against O’Shane, the matter was returned to the local court with orders it be finalised by a different magistrate.

In one of those cases there had been two appeals – O’Shane dismissed the charge, the prosecution appealed and the Supreme Court upheld the appeal and returned the matter to the local court where O’Shane again dismissed the charges.

The prosecution again appealed and the matter was returned to the local court with an order that it be heard by another magistrate.

O’Shane was the first Aboriginal Australian barrister and first Aboriginal woman to be appointed the head of a government department in Australia.

Like other high achievers, such as Marcus Einfeld, she runs the risk her achievements will be overshadowed by what appears to be increasing personal failings in her judicial role. Her conduct on the bench must cause the community to doubt whether she is capable of performing her task without ”fear or favour”. Any victim of a crime would have to be concerned if their matter was listed before her because of her repeated failure to afford procedural fairness to the prosecution.

(1) No holder of a judicial office can be removed from the office, except as provided by this Part.

(2) The holder of a judicial office can be removed from the office by the Governor, on an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity.

(3) Legislation may lay down additional procedures and requirements to be complied with before a judicial officer may be removed from office.

As you can see, the criteria are very similar to section 72 of the Commonwealth Constitution which of course governed the situation of High Court Justice Lionel Murphy examined in the LWZ202 study guide. Do you think that either ‘misbehaviour’ or ‘incapacity’ (probably more the former than the latter) is made out on the above facts? If you have time you might also like to read john Waugh ‘A question of capacity: the case of Justice Bruce’ 9 Public Law Review 223 (reproduced in PDF here). Note however that Justice Bruce’s case was one of incapacity rather than misbehaviour.

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About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.

Small note, which makes the removal provision work somewhat differently from the Commonwealth provisions. The Judicial Officers Act 1986, which is grounded in Section 43(3) of the Constitution, provides that a judicial officer cannot be removed from office without a conduct division of the Judicial Commission finding ‘that the matters referred to in the report could justify parliamentary consideration of the removal’. Frankly it would be much better to incorporate Section 41 of the act directly into the constitution.

I am old-fashioned enough to think that you should be able to find how a thing works without referring backwards and forwards between two different instruments, especially where you need to know separately about the Act to understand the Constitution. The constitution gives the impression that the legislature has unlimited power to remove a judge.

There is also the nasty possibility that a legislature may respond to a Judicial Commission finding they do not like by repealing the Judicial Officers Act and then removing the judicial officer.

Given she’s always only been in the local court, at least there has always been clear recourse to higher courts, should she had been experiencing a particular virulent bout of I’m Every Victim…This Court’s All About Meeee the Mondee morning you appeared before her after the weekend before!

Still, that’s not really good enough. She is an abominable look for someone in such a prominent public position, all on $400,000 a year too, for is basically a job requiring filing skills, with a bit of Super Nanny Goes Off! needed occasionally. Clearly, she has been allowed to piss over that most commonly used part of the justice system because of all those white racists born before 1960, who STILL haven’t got over their bizarrely administered dose of white guilt, due to the way they treated all non-white people back then. If only Marilyn Lake would publish an op-ed in the SMH every ANZAC Day, titled “It’s Time to Go, Pay!”

Well, I wasn’t alive back then. To me, she’s just another public servant who happens to be a right cow far too often to justify paying her more than shop girls, who at least are well-mannered. Oh, yeah, and one of her parents was a black sheilah and one was an white Paddy

Clearly she has iss-youse. My verdict? Bundle up the old bag, and put her on circuit in the NT for a couple of years. If she wakes up to herself, calls a TV conference, and apologises to the nation for being such a sour puss for so many years, then give her her pension, and a one way ticket to anywhere out of earshot of the rest of us, taking the ‘One Day of the Year’ tenured geriatrics with her. If she refuses, tell Centrelink to send her a letter to show up for work experience – taking messages and making fluffy-ducks for Andrew Bolt.

This whole post is appallingly racist. There wouldn’t be an issue if she wasn’t aboriginal. She does understand vicims of this country’s authoritarian attitudes and tries to compensate, and is racially vilified for it.

There has to be much more subatantial reasons to justify removal or any penalising than presented here. She exudes common sense, a quality that senior administraors of our so-called justice system severely lack.

Some folks here appear to know as much about the separation of powers as Joh Bjelke-Petersen. A moment’s reflection should reveal to sensible folks the great danger of giving the legislative branch the right unilaterally to remove persons from judicial office.

It is clear that, for whatever reason, O’Shane’s more recent performance on the Bench is questionable.

A quite reasonable process exists to effect her removal. It requires only a little courage for the O’Farrell government to initiate this process.

O’Farrell HAS referred O’Shane’s conduct to the Judicial Commission, apparently not on the basis of any single incident but a pattern of conduct and attitude over a long period.

Note that NSW is unusual in having a Judicial Commission to advise the Parliament on exercise of its judicial removal power, although the Commonwealth is now considering a similar mechanism. Katz talks about separation of powers, however it is a peculiarity of the Westminster system ever since the Act of Settlement 1701 that judicial removal is by Parliament for “misbehaviour” or “incapacity”. Removal on a partisan political basis is inhibited by the Constitution requiring an address from BOTH Houses of Parliament. In NSW there is the additional legislatively imposed check of requiring Judicial Commission proceedings and recommendation as a prerequisite to Parliamentary removal. It actually seems to work quite well. Parliament does not remove judges lightly, in fact it almost never occurs. The Judicial Commission recommended the removal of Bruce J some years ago (mental illness resulting in failing to hand down judgments for years on end) but the Parliament nevertheless voted against his removal. He wisely retired soon afterwards.

As for Hammygar’s rather silly “racist” epithet:

(1) Eburn and Townsend’s material about the number of times O’Shane has been reversed on appeal is not probative in itself, even if it IS the case that she is reversed significantly more often than other judges/magistrates. This was also probably true of Kirby J when on NSW Court of Appeal, and the same attributes led to his christening as the “Great Dissenter” on the High Court. No-one (except Bill Heffernan) would have suggested Kirby J was thereby guilty of “misbehaviour” or “incapacity”. You have to look much more closely at conduct than by mere statistics. Kirby J’s judicial reasoning was always rigorous and well within the bounds of rational judicial discourse, even if many of his fellow Justices often disagreed with him. O’Shane OTOH, at least judging by Eburn and Townsend’s material, appears to exhibit scant regard for law, precedent or judicial reasoning processes. However the examples they cite might conceivably be isolated ones in a judicial career that has no doubt encompassed thousands of decisions, a high proportion of which would certainly have involved the Police against whom she is allegedly prejudiced. That’s why it needs a body like the Judicial Commission to conduct a rigorous, objective examination before making a recommendation.

(2) I have no doubt that some/many police DO (consciously or otherwise) target young Aboriginal men and indeed other conspicuous marginalised groups) for “special” treatment, although some individuals within those groups no doubt merit attention on entirely objective grounds. The problem with O’Shane, again judging on the conceivably selective examples discussed in the post, seems to be that she is just as automatically biased against police as they are against young Aborigines. Neither is desirable, but the position of a judicial officer more critically requires objectivity and lack of strong bias/prejudgment.

Finally, my impression of O’Shane is a bit like what I thought about poor old Lionel Murphy: great and noble activists and legal reformers in their time, but both probably lack(ed) judicial temperament. I agree with Dan’s comment about the judicial role versus that of a politician or law reformer.

Note that NSW is unusual in having a Judicial Commission to advise the Parliament on exercise of its judicial removal power, although the Commonwealth is now considering a similar mechanism. Katz talks about separation of powers, however it is a peculiarity of the Westminster system ever since the Act of Settlement 1701 that judicial removal is by Parliament for “misbehaviour” or “incapacity”.

Nope. According to the 1902 Constitution Act, removal of persons in judicial office is the prerogative of the Governor. Parliament can only recommend removal.

(2) The holder of a judicial office can be removed from the office by the Governor, on an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity.

As with most aspects of the Westminster system, it is generally (although perhaps not universally) accepted that the Governor (or G-G at Commonwealth level) MUST act on the advice of the political executive (or Parliament in the case of judicial dismissal), except in the extremely limited situation of reserve powers. This is the key attribute of the Westminster system of “responsible government”. Thus, while it is a shorthand summary to indicate that judges are dismissable by Parliament it is nevertheless an accurate one.

Mind you, the whole structure of responsible government is based on unwritten and legally unenforceable conventions/understandings about how constitutional actors should behave. Given that there has to the best of my knowledge only been a single example of removal of a judge at either federal or state level since federation (namely Judge Angelo Vasta in Queensland for apparent corrupt activity some years ago), the detail of any such convention is probably rather uncertain.

It is conceivable that a Governor might well be reticent about acceding to an address for removal from Parliament if it seemed high-handed. However, even then Westminster convention is quite clear that the PM or Premier could then advise the Queen to dismiss the Governor or G-G and she would ultimately be obliged to accede to that “advice”.

However, even then Westminster convention is quite clear that the PM or Premier could then advise the Queen to dismiss the Governor or G-G and she would ultimately be obliged to accede to that “advice”.

And the Governor can dismiss the Premier and Cabinet. See Lang, 1932.

The reserve powers of Australian governors are extraordinarily broad.

The salient point is that the dismissal of a judge does not take effect until the Governor orders it.